Protecting Yourself From Legal Malpractice

Legal malpractice is a term that describes negligence, breach of fiduciary duty, or breach of contract by an attorney that causes harm or abuse to his or her client. The following are just some of the most common legal malpractice claims according to the American Bar Association:

  • Failure to recognize and practice the law.
  • Planning error
  • Lacking or inadequate investigation
  • Failure of filing required documents
  • Fail to calendar
  • Failure to know deadlines
  • Procrastination
  • Failure to obtain client consent
  • Conflict of interest
  • Failure to follow instructions
  • Failure to react to calendar
  • Malicious Prosecution
  • Error in record search
  • Clerical error
  • Improper withdrawal
  • Libel of slander
  • Civil rights violation
  • Tax consequences
  • Error in math
  • Lost file and document
  • Poor communication
  • Work Delegated to outsider

Knowing these things will actually guide you while doing legal services to your clients. It will also protect you and your firm from having a negative reputation and even prevent financial ruin. Recognizing these risks is the only way to lessen the chances of malpractice. So here are some few things to remember to protect yourself from legal malpractice claims:

  1. Have an engagement letter to define the legal relationship you have with your client. Be sure that it contains the following:
  • The description of the work to be performed
  • The specific services which will be the basis for fees
  • The actions to be taken if charged fees are not paid
  • Limitations of work (services that will not be performed)
  • Dispute resolution procedures
  • Limitation on liability
  1. Do not accept clients who cannot afford your legal services.
  1. As a firm, have an office-wide calendar system that contains the following to avoid missing deadlines:
  • Easy to use and maintain
  • Having multiple backups in case of disasters
  • Crosschecked the master calendar and backup calendars to correct errors
  • Being reviewed regularly
  • Having an activity log to track who made entries
  1. Have a careful and precise research. Take time to study new developments in the law and continue to check files to ensure that newly enacted statutes do not affect (or affect) your clients’ positions and rights
  1. You must establish strict and precise procedures to identify and resolve unexpected conflicts of interest. You should be cautious of situations like:
  • Representation of two opposing parties
  • Representation of opposing theories of law
  • Involvement in a client’s business interest
  • Being an officer of a client’s company
  1. You should confirm the accuracy and content of all documents such as letters, contracts, and motions. More than one person should also cross-check it. Furthermore, have a good file management that includes logging of documents, daily filing, and reviewing. It is also advantageous to make use of technology to easily store, backup, secure, and retrieve files.
  1. Be realistic in setting up your quality control process and be sure that you can follow this process to avoid claims of negligence.

If problems arise in the process, be sure to advise the client on practical ways to minimize the impact of the issue. Focus on the solution rather than pointing fingers at others.